“Although originalists disagree among themselves over some details, they share one core belief: The courts should read the U.S. Constitution much the same way they read other documents ... [understanding] a document the same way the document’s creators understood it.”
Without the discipline of originalism, judges can, and do, inject their own preferences into the Constitution. In other words, they become unelected lawmakers.
Serving Arbitrary Power
James Wilson was one of our leading Founders. In a lecture at what is now the University of Pennsylvania, he made the following observation:“Every plausible notion in favour of arbitrary power, appearing in a respectable dress, is received with eagerness, protected with vigilance, and diffused with solicitude, by an arbitrary government.”
The truth of his comment is shown by the plethora of professors who pander to arbitrary, centralized power. Because the Constitution controls and limits power, they often spread nonsense about the Constitution. And, sometimes, it’s nonsense on stilts.
Old Originalism
Originalism has been the standard way for interpreting most documents for centuries.A passage in the Corpus Juris, based on comments by a leading third-century commentator, explains how to interpret certain contracts: The reader is to consider both the words of the contract and the “mens convenientium”—that is, the intention or understanding of the parties. (Justinian’s Digest, 2.14.7.8.) The passage gives an example that shows how testimony of intent can alter the apparent meaning of the words.
Unlike Greek and Roman legal systems, the English legal system was the direct ancestor of our own. For English lawyers and judges, the guide for interpreting legal documents was “the intent of the makers”—that is, the understanding of the parties.
If an English judge had to determine the meaning of a phrase in a contract, he asked: “How did the parties to this contract understand this phrase? And if the evidence isn’t clear on this point, what was their most likely understanding?”
Similarly, if the disputed language appeared in a parliamentary statute, the judge asked: “How did the members of Parliament who voted for this law understand the phrase? Or, if the evidence isn’t clear on this point, what was their most likely understanding?”
Originalism Doesn’t Equal Textualism
This is a good place for a related observation: Many people confuse originalism with textualism. They are not the same thing.Originalism is applying a document according to how its creators understood it. Textualism is a particular way of achieving that result. Textualism sometimes is appropriate and sometimes not.
Textualism means searching for the parties’ understanding from the text of the document only. A textualist doesn’t consider outside evidence, such as prior history or testimony about what the parties intended.
A much more famous commentator, the late Justice Antonin Scalia, pointed out that individual members of Congress and staffers often try to skew the interpretation of a pending bill by injecting their own ideas into the legislative history. Therefore, Scalia argued, when reading modern federal statutes, we should ignore legislative history and examine only the enacted text.
Early American Originalism
Even before the U.S. Constitution was written, judges started applying originalist principles to state constitutions. An example is the 1782 Virginia case of Commonwealth v. Caton. Six of the eight justices deciding the case were important American Founders, and all eight justices interpreted their state constitution according to the understanding of its “makers.”Later History
Originalism remained the standard way of interpreting the Constitution until well into the 20th century. However, during the 1930s and 1940s, “progressive” Supreme Court justices (most of whom had no prior judicial experience) displaced originalism with methods of reading the Constitution that exalted federal power at the expense of individuals and the states. (See my Epoch Times series, “How the Supreme Court Rewrote the Constitution.")In other words, the methods applied by “progressives” are the new, partisan inventions. Originalism is the standard bequeathed by the ages.